Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

Mnookin begins by conceding that support for electronic recording of interrogations is growing in law enforcement; “firsthand experience with recording tends to turn law enforcers into supporters.” And recording benefits defendants as well, “because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation.” But here’s her concern:

[A]ccording to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it….When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

First thing to notice: Professor Mnookin is not saying that recording interrogations is a bad idea — quite the opposite. She says, correctly, that recording helps both law enforcement and defendants.

Second, Mnookin says that even recording interrogations under the best protocol imaginable does not guarantee the elimination of false confessions. Remember that the (false) confessions of the Central Park Five were recorded. Recording won’t cure all ills.

Third, the research she points to that describes the problem of “camera perspective bias” contains the solution: a requirement that the recording must include both the interrogator and the suspect in the picture.

The take away: recording interrogations represents a positive development, but we can’t just flip on the recording equipment. We need to have proper protocols for this practice. For example, we must require recording the whole interrogation, not just the last part in which the suspect confesses. (I’ve made that argument here.) Adding a requirement to record both interrogator and suspect makes all the sense in the world.